Mathison v. Public Water Supply Dist. No. 2 of Jackson County, 51819
| Citation | 401 S.W.2d 424 |
| Decision Date | 14 March 1966 |
| Docket Number | No. 1,No. 51819,51819,1 |
| Parties | Bob C. MATHISON et al., Petitioners-Appellants, v. PUBLIC WATER SUPPLY DISTRICT NO. 2 OF JACKSON COUNTY, Missouri, Defendant-Respondent |
| Court | United States State Supreme Court of Missouri |
Preston H. Longino, Kansas City, Blaine E. Strader, Richard T. Cole, Raytown, for appellants.
Charles V. Garnett, Richard A. Erickson, Walter A. Raymond, Kansas City, for respondent.
This is a proceeding under § 247.170, RSMo 1959, 1 by residents of the City of Raytown 2 as owners 3 of real estate located within the territory of defendant, Public Water Supply District Number Two of Jackson County, to detach and exclude from the District all that part of its territory lying within the corporate limits of the city. A motion to dismiss filed by defendant was sustained and the action dismissed. Plaintiffs appeal from that judgment.
Section 247.170 provides that 'Whenever any city owning a waterworks or water supply system extends its corporate limits to include any part of the area in a public water supply district, and the city and the board of directors of the district are unable to agree upon a service, lease or sale agreement, or are unable to proceed under section 247.160, then upon the expiration of ninety days after the effective date of the extension of the city limits, that part of the area of the district included within the corporate limits of the city may be detached and excluded from the district in the following manner(.)' The 'manner' provided describes these steps (excluding minor details) to be taken: (1) A petition 'to detach and exclude' shall be filed in the circuit court of the county in which the district was organized; (2) 'The court, being satisfied as to the sufficiency of the petition, shall * * * call a special election * * *' submitting to the qualified electors of the district the 'proposal to detach and exclude the part of the district lying within the corporate limits of the city * * *'; (3) Notice of the election shall be given and published; (4) If the proposal is approved by a majority of the voters, 'The court * * * shall * * * enter a decree detaching and excluding the area in question * * * from the * * * district.'
Section 247.170 further provides that the decree mentioned in step (4) above shall not become final until the city shall show to the court that it has assumed and agreed to pay: (1) the court costs and costs of calling and holding the special election, and, (2) either in lump sum or in installments a certain porportion of all liquidated general obligations and of all unpaid revenue bonds and interest of the district.
Plaintiffs took the first step on July 26, 1965, by filing their petition alleging, inter alia, that: (1) the City of Raytown owns a water supply system; (2) all of the area of the defendant is now within the corporate limits of the city and has been for more than 90 days before filing the petition; (3) the city and the board of directors of defendant are unable to agree upon a sale agreement of the assets of defendant, and are unable to proceed under § 247.160 because defendant refuses to proceed under that section; and, (4) the city has consented to the holding of the election. Plaintiffs prayed that the court call a special election in accordance with the statutes and if the proposal receives a favorable vote, that it decree that the area described be detached and excluded from the district. Defendant's motion to dismiss attacked the jurisdiction of the court over the subject matter of the action. Attached to and made a part of this motion was a copy of Ordinance No. 120 of the City of Raytown adopted July 6, 1965, a copy of a contract between the City of Raytown and Raytown Water Company, a corporation, and an affidavit of the president of defendant who was also a resident of the city.
Ordinance No. 120 authorized the city: (1) to purchase that part of the water distribution system of Raytown Water Company (hereinafter referred to as Water Company) lying south of 79th Street in the city and pay the purchase of price from surplus in the city's general fund; and, (2) to operate and maintain a water supply system and supply water to its inhabitants as authorized by § 91.010. The contract between the Water Company and the City provided for the sale and purchase of the above-described distribution system for $62,500, subject to the approval of the Public Service Commission of Missouri. The affidavit of the president of defendant discloses the following facts.
The purchase price of this water distribution system was paid by the city in one lump sum in July, 1965, out of surplus in the city's general fund. No part of the purchase price was paid by the issuance of general obligation or revenue bonds. The proposition of whether the city should acquire the water distribution system and issue bonds in payment therefor has not been submitted to the electors of the city. Also in July, 1965, the Public Service Commission entered an order stating, in substance, that it 'had no objection' to the sale by Water Company to the city. Both the Water Company and the Water District were formed and organized before the incorporation of the City of Raytown. Raytown Water Company is a privately owned corporation organized in 1925. It serves what is generally described as the northern portion of the city. The Water District was incorporated by decree of the circuit court of Jackson County in 1935, under what is now Chapter 247, RSMo 1959. It serves what is generally described as the southern portion of the city. The City of Raytown was incorporated as a fourth class city in July, 1950. The city's original boundaries included only a part of the territory of the Water District. By successive actions of the city in 1959, 1960 and 1961, additional territory of the Water District was annexed so that now all of its territory is within the corporate limits of the city. Before enactment of Ordinance No. 120 the city did not own or operate a water supply system, the inhabitants of the city being served exclusively by either the Water Company or the Water District. That portion of the system of the Water Company purchased by the city lies south of 79th Street and will supply water to approximately 300 of approximately 9000 city water users. This system is not physically connected with the balance of the Water Company's system, and will get its supply of water from the City of Kansas City through one of the latter's mains at the intersection of 81st Street Terrace and Blue Ridge Road. It is readily apparent from this description of the distribution system purchased by the city that it will serve the same area as that which the Water Company was denied a right to serve by order of the Public Service Commission as a result of the opinion and mandate of this court in the case of State ex rel. Public Water Supply District No. 2 of Jackson County, etc., v. Burton, et al., Mo.Sup., 379 S.W.2d 593.
The defendant alleges in its motion to dismiss that 'the City does not own a waterworks or water supply system within the meaning of paragraph 1, of section 247.170' because Ordinance No. 120, and the acts of the city pursuant to the ordinance, are void for these reasons: (1) that the city could not acquire any right to serve water to those inhabitants of the city residing in the area south of 79th Street, because the Water District has the exclusive right and obligation to serve that area; (2) that the city was required by law to call a special election and submit the proposition of acquiring this waterworks system to its electors before its purchase; (3) that the purchase price for the waterworks system legally may be paid only by the issuance of revenue bonds approved by electors of the city and that payment of the purchase price from the city's general fund constitutes an unlawful appropriation from that fund; (4) that the ordinance is a local or special law violating Article III, § 40, subparagraph (30), Constitution of Missouri, V.A.M.S., in that it makes provision for distributing water only to those inhabitants of the city residing south of 79th Street rather than to all inhabitants; (5) that the city, being in privity with the Water Company, is bound by the order of the Public Service Commission and that that order is res judicata of any claim of right of either the Water Company or the city to serve this area; (6) that the contract between the Water Company and the city is an arbitrary and unlawful attempt by the city to aid the Water Company in circumventing the order of the Public Service Commission and the mandate of this court; (7) that the City of Raytown was not a 'city owning a waterworks or water supply system' at any time before it extended its corporate limits to include the several parts of the area of the Water District. In sustaining this motion to dismiss, the trial court did not specify any particular ground or grounds on which it based its order and judgment.
The defendant contends that tax revenue on hand in the city's general fund may not be used to purchase a water distribution system; that the city is required to borrow money for such purpose, i.e., that the only revenue the city may use for this purpose is that produced by indebtedness evidenced by issuance of revenue bonds approved by its electors. Plaintiffs contend that revenue on hand in the year 1965 was properly available and used to pay the full purchase price. The issues presented for review relate to the disbursement of revenue and its preservation, and involve construction of the revenue laws of this state; hence, jurisdiction is vested in this court. Article V, § 3, Constitution of Missouri; State ex rel. Attorney General v. Adkins, 221 Mo. 112, 119 S.W. 1091; State ex rel. Pullum v. Consolidated School District No. 5 of Stoddard County, Mo., 233 S.W.2d 703(1); State ex...
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